Il processo in assenza delle parti: riflessioni sul contraddittorio dimidiato nel giudizio amministrativo e nel rapporto con l’art. 105 cpa.

Abstract

This study focuses on the analysis of certain aspects of the regulation of the adversarial principle in administrative litigation, highlighting the main critical issues arising from the provisions of the Code of Administrative Procedure that reflect a procedural model of weakened adversarial protection. The analysis concentrates in particular on the notion of a necessary party to the proceedings and on the provision set out in Article 49(2) of the Code of Administrative Procedure, as paradigms of a “curtailed” adversarial process, and examines their principal practical implications for the reconstruction of the defect consisting in the lack of adversarial proceedings, with specific reference to Article 105 of the Code. After examining the regulatory context and case law, the study highlights the variability and uncertainties underlying the reconstruction of the defect of the lack of adversarial process in relation to appeal proceedings. It invites some concluding critical reflections, including on the interpretative uncertainties posed by the positive finding in the search for a possible balance between the opposing principles of the matter.